Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa by Michael Lobban

Abstract

In this book, Michael Lobban examines the extensive use of detention without trial in British Colonial Africa at a period in which, seemingly incongruously, Diceyean rule of law thinking was at its height in the heart of the British Empire. Detention without trial, undermines the rule of law in that the liberty of an individual is constrained without due process, and sometimes without any legal authorisation whatsoever. Lobban begins by asserting that by the time Dicey first wrote Introduction to the study of the Law of the Constitution in 1885, “a unique spirit of legalism . . . was embedded in English constitutional culture” (p. 1). A consequence was that detention without trial was impermissible, and this prohibition was protected by the writ of habeas corpus. How, then, could such extensive use of detention without trial in British Africa at the time have been permissible? Lobban demonstrates that this question is complicated by the fact that many thinkers of the time did not consider the rule of law to be constrained to England itself, but to spread throughout the Empire. Indeed, by the time Dicey was writing, many British imperialists considered the spread of the rule of law to be a central justification for the Empire. In keeping with this, the writ of habeas corpus (in either its common law form, its statutory form, or both) spread across the Empire (p. 5). Of course, even in Britain itself, detention without trial could be justified by limited “suspension” of habeas corpus by Parliament (suspension here is a misnomer – such acts in fact empowered the executive to detain in certain circumstances, thus rendering habeas corpus inapplicable). Notably, Parliament had not enacted habeas corpus suspension legislation in Britain since 1818. Lobban shows that Dicey’s view was that such parliamentary exceptions to the prohibition on detention without trial were acceptable since Parliament could be trusted to introduce such powers only when there was a threat to the rule of law itself. Lobban contends that that this principle translated to the imperial context meant that detention could only be authorised when it was necessary and justifiable in terms of the “common law idiom” (p. 9). Throughout the book, and central to his conclusions, formal and substantive perspectives of the rule of law are distinguished. Though these terms may be considered by some to be anachronistic in the context of this history, Lobban certainly identifies an important distinction between commitments merely to legal authorisation (“formal” rule of law), and commitments to common law rights and liberties (“substantive” rule of law). Lobban uses his material to illustrate that the degree to which formal versus substantive versions of the rule of law were followed tended to be “determined by the attitudes and practices of particular individuals, and reflected the constitutional culture in which they operated” (p. 33). He contends that a substantive approach tended to occur where there was a commitment to rule of law values amongst the colonial governing class, and this in turn tended to map on to areas in which the subjects of detention mechanisms were deemed to be “part of the same political community” (p. 33) – a matter often deeply affected by racial prejudice. Furthermore, such commitments were bolstered when political pressure was brought to bear upon decision makers either in the colony or the metropole. Conversely, where detainees were not deemed to be part of the same political culture, or where little public notice was Cambridge Law Journal, 82(1), March 2023, pp. 178–180 © The Authors, 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S0008197323000053